Whether the Department was justified in its decision to refuse access to records relating to the proposal to criminalise the purchase of sexual services on the ground that the records are exempt under sections 29 and 33(1) of the FOI Act 

21 August 2018 

Background

By email dated 3 July 2017, the applicant made an FOI request for "copies of all briefing materials, memos, minutes, draft and final proposals, and any other intra-departmental correspondence concerning the proposal to criminalise the purchase of sexual services, from March 2011 until November 2014 inclusive". In correspondence with the Department, the applicant subsequently agreed to narrow the time-frame to May 2014 until November 2014 inclusive. The Department issued a decision by letter dated 19 September 2017. It granted access to some records and refused access to the remaining records, under sections 15(1)(d), 28, 29, 33, 37 and 42 of the FOI Act. The applicant applied on 20 October 2017 for an internal review in respect of Records 2, 5, 6, 14, 16, 19, 30, 31, 40, 42, 43, 44 and 46. The Department issued an internal review decision by letter dated 28 November 2017. It granted access to Record 40, granted partial access to Record 44 and refused access to the remaining records. On 10 April 2018 the applicant applied to this Office for a review of the Department's decision. 

In conducting my review, I have had regard to the correspondence between the applicant and the Department as outlined above and to the correspondence between this Office and both parties, as well as the content of the records that were provided to this Office by the Department for the purposes of this review. 

Scope of this Review

During the review process, the applicant confirmed that she did not seek access to Record 44 or to advice from the Attorney General. Therefore, Record 44 and the following pieces of information fall outside the scope of this review: point 9 on page four of Record 2; the penultimate paragraph on page three of Record 6; the second full sentence on the second page of Record 14; the second full sentence on the first page of Record 30; the third full paragraph on the second page of Record 31 and the first paragraph of Record 46. 

The questions for me are whether the Department was justified in refusing access to the remaining parts of Records 2, 5, 6, 14, 16, 19, 30, 31, 42, 43 and 46 (the records) under section 29 of the FOI Act and whether it was justified in refusing access to the remaining part of Record 2 under section 33(1) of the FOI Act. 

Preliminary Matters

Before considering the exemption claimed, I wish to make the following points. First, section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on the Department to satisfy me that its decision is justified. Secondly, my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review.  The Courts have endorsed this approach.

Analysis and Findings
 

Section 29 - Deliberations of FOI Bodies

Section 29(1) of the FOI Act provides that an FOI body may refuse to grant an FOI request if the record contains matter relating to the deliberative process and granting the request would be contrary to the public interest. These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. It is therefore important for public bodies to show to the satisfaction of the Commissioner that both requirements are met. The public interest test contained in this provision differs from the public interest test found in other exemptions under the FOI Act. To avail of this exemption, the public body must be of the opinion that releasing the records would be against the public interest. Other exemptions require the public body to be of the opinion that the public interest would be better served by release. In my view, this exemption tends more strongly towards release of the records. This means that public bodies have a higher hurdle to overcome in demonstrating that it applies.

Section 29(2) - Factual Information

The exemption at section 29(1) does not apply to a record insofar as it contains factual information (section 29(2)(b)). Section 2 of the FOI Act states that "factual information" includes information of a statistical, financial, econometric or empirical nature, together with any analysis thereof. The Commissioner regards factual information as including material presented to provide a factual background to the central topic in a record, and that factual information is distinguishable from information in the form of a proposal, opinion or recommendation. My examination of the records leads me to believe that the records contain some factual information. The Department itself notes that certain records detail the factual text of the law in relation to the purchase of sex in other jurisdictions and says that it would not be contrary to the public interest to release this information. However, it has not released it. Given my conclusions below, I do not consider it necessary to separate out the factual information from the deliberative material for the purposes of this decision. 

Sections 29(1)(a) & (b) - Deliberative Process and the Public Interest

The Department says that the records relate to the deliberative process around Part 4 of the Criminal Law (Sexual Offences) Act 2017 (the 2017 Act) and the formulation of the Criminal Law (Sexual Offences) Bill 2015 (the 2015 Bill). The records comprise: Departmental emails; memoranda and briefing notes for the Minister and draft legislative provisions. I accept that they contain matter relating to the deliberative process around the 2017 Act and the 2015 Bill. I therefore find that section 29(1)(a) applies to the records. I am then required to consider section 29(1)(b). 

The Commissioner has found that the FOI Act clearly envisaged that there will be cases in which disclosing the details of an FOI body-™s deliberations - whether before or, in some cases, after a decision based on those deliberations has been made - would be against the public interest. However, this was not to say that such disclosure is always, as a matter of principle, against the public interest. Any arguments against release under section 29 of the Act should be substantiated and supported by the facts of the case.  It is important that the FOI body shows to the satisfaction of the Commissioner how granting access to the particular record(s) would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release. 

Department's submissions

First, the Department submits that releasing the records would be actively harmful to the public interest, as their release would reveal publicly the views on the law and policy that went into the development of the 2015 Bill. Secondly, it says that the 2017 Act is due an impact review in 2020 and that in its view, this effectively continues the deliberative process until the time of the review's completion. Thirdly, it submits that publicising internal discussions on the evidential burdens and potential 'gaps' in the law could benefit those who profit from the organisation of prostitution, as well as those who seek to avoid prosecution for the purchase of sex and to influence the statutory review for their own ends. In conclusion, it submits that releasing the records would be contrary to the public interest. 

Applicant's submissions

The applicant submits that factual information does not fall under the exemption claimed and even to the extent that the records are solely concerned with the deliberative process, it must be shown that their release would be contrary to the public interest, which is a high threshold. The applicant also submits that the deliberative process in question was supposed to involve the public and is long over.

Analysis and Finding

I will address the Department's submissions in turn. First, section 29 requires the Department to show that releasing matter relating to a deliberative process would be contrary to the public interest. I cannot accept that publicly disclosing views on law and policy (i.e. deliberative material) is, of itself, against the public interest. Secondly, I note that the 2017 Act requires the Minister to prepare a report on the operation of the legislation not later than three years after its commencement. That report should include information on the number of arrests and convictions in respect of offences under the legislation and an assessment of its impact on the safety and well-being of persons who engage in sexual activity for payment. Future deliberations on the operation of the 2017 Act would appear to me to involve a separate deliberative process. The records at issue here may or may not relate to that future process. In any event, the question at this stage in my consideration is whether it would be contrary to the public interest to release them. The requirement for a future deliberative process on the 2017 Act's operation does not in itself demonstrate that section 29(1)(b) applies. Thirdly, the Department refers to information about evidential burdens and potential 'gaps' in the law which could benefit those who profit from prostitution or seek to avoid prosecution. However, it has not identified records which disclose such information or shown how granting access to the records could result in such a harm. 

Section 11(3) of the FOI Act requires public bodies to have regard to the need to achieve greater openness in their activities and inform scrutiny, discussion, comment and review by the public of their activities. I consider this to be relevant to my assessment as to whether it would be contrary to the public interest to release the records.

I am required to be satisfied that both sections 29(1)(a) and (b) apply. In the circumstances, the Department has not satisfied me that section 29(1)(b) applies. Accordingly, I find that the Department is not justified in refusing access to the records under section 29(1) of the FOI Act.  

Section 33 - Security, defence and international relations

The Department's schedule of records refers to section 33(1) of the FOI Act as well as section 29 in relation to Record 2. Section 33(1) is a harm-based exemption. The FOI body relying on section 33(1) must identify the potential adverse effect on one of the matters specified in paragraph (a), (b), (c) or (d) of subsection (1) that might arise from disclosure of the record and having identified that adverse effect, consider the reasonableness of any expectation that the adverse effect will occur. During the review, the investigator invited the Department to make submissions on section 33(1). In reply, the Department stated: "having reviewed the documentation and the case studies on the application of section 33(1) on the OIC website I have nothing further to add to the submissions made to date". 

I have reviewed the correspondence from the Department to identify submissions which relate to section 33(1). Its original decision letter states: "some records have been refused on the basis that they contain information pertinent to security, defence and international relations". Its internal review decision states: "the decision maker was correct in the case of all further records and that these are not appropriate for release". The Department also provided this Office with a document which states: "other records refused/partially released relate to international relations involving [a named person] ..." (although I believe this may relate to a record other than Record 2). The Department has not identified any potential adverse effect under section 33(1) or shown how it is reasonable to expect that any such adverse effect will occur. In the circumstances, I have no basis upon which to find that section 33(1) applies. I find that the Department is not justified in refusing access to Record 2 under section 33 of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I annul the Department's decision on the records and direct their release.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision.  In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator